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Court of Criminal Appeal 21 November 2018

Brown v R

[2018] NSWCCA 257

Also reported as (2018) 99 NSWLR 151
Theft & propertyPublic order & justice offences

Citation: Brown v R [2018] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 21 November 2018
Judges: Payne JA, Johnson J (dissenting), N Adams J

Background

The applicant (identified by the pseudonym Darren Brown) entered Australia on a false passport for the purpose of committing break, enter and steal offences on behalf of an overseas criminal syndicate. He committed 12 such offences over approximately two months in 2014, targeting homes of Chinese and Indian families by researching surnames in the telephone directory. When police executed a search warrant on his rented premises, they discovered stolen jewellery and property worth approximately $394,000, and he had already remitted around $118,000 overseas.

Following a plea of guilty, the applicant was sentenced in the District Court to an aggregate term of 7 years and 10 months imprisonment, with a non-parole period of 5 years. The sentencing judge described the offending as "serious in the extreme," found a high risk of reoffending, and gave limited weight to the applicant's expressions of remorse. A combined discount of 45 per cent was applied for the early guilty plea and assistance to authorities.

The applicant sought leave to appeal against sentence on the sole ground that his legal representatives at the sentencing hearing had so badly mishandled his case as to occasion a miscarriage of justice. Specific complaints included failure to obtain proper instructions (complicated by the applicant's lack of English and a hearing impairment), failure to show him the pre-sentence report, failure to adduce evidence such as character references, failure to call him to give sworn evidence, and failure to make relevant submissions about his deprived background and position within a criminal hierarchy.

  • Whether the conduct of the applicant's legal representatives at the sentencing hearing fell so far below the required standard as to occasion a miscarriage of justice.
  • Whether the failure to call the applicant to give sworn evidence at sentencing, in circumstances where his unsworn remorse received little weight, denied him procedural fairness.
  • Whether the failure to show the applicant the pre-sentence report and advise him of its contents or how to respond to it contributed to a miscarriage of justice.
  • What standard of proof and degree of potential effect on outcome is required before the Court of Criminal Appeal will intervene on the basis of legal representatives' failures at sentencing.
  • Whether, under s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender must personally give evidence to establish remorse.

Decision

The majority (Payne JA and N Adams J) found that leave to appeal should be granted and a resentencing ordered. The representation provided to the applicant at the sentencing hearing fell well below the standard expected of experienced criminal law practitioners. Considered alone, several of the failures might not have been enough to establish a miscarriage of justice. However, the critical matter was the pre-sentence report, which recorded statements attributed to the applicant about his attitude to offending. That report directly informed the sentencing judge's finding that the applicant was likely to reoffend, and the applicant was never shown the report or given the opportunity to respond to it.

Against that background, the failure to call the applicant to give sworn evidence was found to be a gross failure. The applicant's unsworn expressions of remorse were afforded little weight, and there was a significant possibility that sworn evidence could have affected the outcome. The majority characterised this omission as equivalent to a denial of procedural fairness, holding that the sentencing court was deprived of a consideration of the offender's true circumstances.

N Adams J, with whom Payne JA agreed on this point, clarified that s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999 does not require an offender personally to give evidence in order to establish remorse. Evidence of remorse may take the form of an affidavit or statements made to third parties. Nonetheless, such untested evidence is treated with caution, and sworn oral evidence subject to cross-examination carries greater weight. Applying that analysis, the failure to have the applicant give evidence raised a significant possibility that the sentencing outcome was affected.

Johnson J dissented. His Honour accepted that a lack of diligence by legal representatives is not of itself a basis for appellate intervention. The test is whether there is a significant possibility that the omissions actually affected the outcome. On the facts, Johnson J found the applicant had not established on the balance of probabilities that the contents of the pre-sentence report had not been read to him, and that the applicant neither denied those contents nor challenged the statements attributed to him. His Honour concluded that any evidence of remorse the applicant could have given would have amounted to no more than a formulaic expression of regret, insufficient to establish genuine remorse directed at the victims and the broader community.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A gross failure by legal representatives at a sentencing hearing, particularly the failure to call the offender to give sworn evidence, can constitute a miscarriage of justice sufficient to warrant appellate intervention, especially where unsworn expressions of remorse have received little weight from the sentencing judge.
  • Under s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999, an offender does not need to personally give oral evidence to place remorse before a sentencing court. Affidavits and statements to third parties may suffice, but courts treat such untested material with caution.
  • Failure to disclose a pre-sentence report to an offender and to advise them of its contents and available responses can, in combination with other failures, contribute to a denial of procedural fairness at sentencing.
  • The Court of Criminal Appeal confirmed that the applicable threshold for intervention is a significant possibility that the conduct of legal representatives affected the sentencing outcome, not merely proof that the conduct was unsatisfactory.
  • In dissent, Johnson J emphasised that the applicant bears the onus of establishing, on the balance of probabilities, the facts underpinning any claim of miscarriage of justice, and that the quality of any evidence the applicant could have given must be assessed before concluding that its absence affected the result.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12

Cases
- Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- Craig v R (2018) 92 ALJR 390; [2018] HCA 13
- Hanna v R [2017] NSWCCA 168
- Imbornone v R [2017] NSWCCA 144
- Mun v R [2015] NSWCCA 234
- Newman v R [2018] NSWCCA 208
- R v Fernando (1992) 76 A Crim R 58
- R v Gray [1977] VR 225
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Whyte (2004) 7 VR 397; [2004] VSCA 5
- Raymond John Munro v Regina [2006] NSWCCA 350
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Sankar v State of Trinidad and Tobago [1995] 1 WLR 194
- Tsiakas v R [2015] NSWCCA 187